REPUBLIC OF KENYA

 IN THE HIGH COURT OF KENYA

 AT NAIROBI

CONSTITUTIONAL AND HUMAN RIGHTS DIVISION

CONSTITUTIONAL PETITION NO. 365 OF 2019

IN THE MATTER OF ALLEGED CONTRAVENTION OF RIGHTS AND FUNDAMENTAL FREEDOMS UNDER ARTICLE’S 21, 22, 23, 25, 27(1), 28, 29, 33, 37, 48, 47(1) AND (2), 50(4) OF THE CONSTITUTION OF KENYA, 2010

BETWEEN

STEPHEN ONGOLA..........................................................................................................1^ST PETITIONER

SIMON ADONGO..............................................................................................................2^ND PETITIONER

JULIUS KAHIU..................................................................................................................3^RD PETITIONER

NEEMA SHEIKH ..............................................................................................................4^TH PETITIONER

VICTOR MOSES OMOLLO............................................................................................5^TH PETITIONER

REBECCA MORAA JILLO..............................................................................................6^TH PETITIONER

LEWIS OMBI ONDWARI ................................................................................................7^TH PETITIONER

VERSUS

THE DIRECTOR OF PUBLIC PROSECUTIONS.......................................................1^ST RESPONDENT

OFFICE OF THE INSPECTOR GENERAL OF THE POLICE................................2^ND RESPONDENT

THE DIRECTOR OF CRIMINAL INVESTIGATION................................................3^RD RESPONDENT

THE CHIEF MAGISTRATE’S COURT (KIBERA LAW COURT, NAIROBI)........4^TH RESPONDENT

THE ATTORNEY GENERAL........................................................................................5^TH RESPONDENT

JUDGMENT

THE PETITION

1. The Petitioners through a Petition dated 16^th September 2019 supported by 1^st Petitioner’s affidavit in support sworn by Stephen Ongola on even date pray for the following reliefs:-

a) A declaration be and is hereby issued that the actions by the Police offices of the 2^nd Respondent of stopping and violently breaking the peaceful demonstration held on 9^th September, 2019 in which the Petitioners participated and the arrest and detention of the Petitioners was a gross violation of the provisions of Articles 19, 20(1), 28, 29, 32, 33, 37 and 49 of the Constitution.

b) A declaration be and is hereby issued that the decision to arrest, detain and mount criminal charges against the Petitioners was undertaken without any factual basis and was a flagrant abuse of police powers and judicial process, hence a gross violation of the Petitioner’s rights and freedoms.

c) An order of certiorari be and is hereby issued to bring into this Honourable Court the proceedings in Nairobi – Kibera Chief Magistrates Criminal Case Number 1178 of 2019 (Republic vs. Stephen Ongola and 6 others) for purposes of being quashed and quashing the said proceedings.

d)  An order of Certiorari be and is hereby issued to bring to this honorable Court and quash the decision made by the 1^st Respondent to prosecute the Petitioners on account of the events that took place on the 9^th September 2019, along Magadi Road, near Multi-Media University (MMU) in Langata Sub-County within Nairobi County, wherein the rights and fundamental freedoms of the Petitioners herein were violated and contravened.

e) An order of prohibition be and is hereby issued prohibiting the 1^st and 2^nd Respondents or any person acting for and on their behalf from further prosecuting  or proceeding with the Kibera Chief Magistrates Criminal Case Number 1178 of 2019 (Republic vs. Stephen Ongola and 6 others).

f) A declaration be and is hereby made that the investigations, and prosecution in Criminal case No. 1178 of 2019 on charges of rioting contrary to Section 80 of the Penal Code, and the alternative charge of Creating Disturbance in a manner likely to cause breach of peace contrary to Section 95(1) of the Penal Code violates the Petitioners Constitutional rights as set out under Article 25, 27, 28, 29, 33, 37 and 49.

g) An order of prohibition be and is hereby issued prohibiting the 1^st Respondent from continuing with prosecution of Criminal Case No. 1178 of 2019 before the 4^th Respondent, on account of events that took place on the 9^th September 2019, along Magadi Road, near Multi-Media University (MMU) in Langata Sub-County within Nairobi County, wherein the rights and fundamental freedoms of the Petitioner’s herein were violated and contravened.

h) A declaration be and is hereby issued that the manner in which the Police searched the fourth Petitioner and the other female students was a gross violation of the statutory provisions governing conduct of police while searching women, a violation of the Constitution.

i) The Respondents pay the Petitioners general damages in the sum of Kshs Shillings 10 Million for the violation of the Petitioners Rights and Fundamental Freedoms under the provisions of the constitution herein above-mentioned.

j) The Respondents be directed to pay the Petitioners the costs of this Petition.

PETITIONERS CASE

2. The Petitioners, the Students of Multi-media University (MMU) aver that on the 4^th day of September 2019, there was an accident involving a First Year Student of Multimedia University of Kenya (MMU) at Sinai Hospital, Ongata Rongai, Nairobi County, where the said student was hit by a speeding Public Service Vehicle (Matatu) that was overlapping on the road beyond acceptable speed limits.

3. The Petitioners urge that to the dismay of Multi Media University Students, no action was taken whatsoever by the state organs responsible for ensuring road safety and/or address the rowdy Public Service Vehicle (matatu) along the Lang’ata – Ongata Rongai, that are notorious for disobedience of Rad Traffic Rules, that are a menace to other road users especially since the said route is mainly used by students.

4. It is urged that the Petitioners resolved to exercise their constitutional right to peacefully demonstrate and picket against the aforementioned impunity with the intention of promoting awareness on the increased incidents of road accidents by Public Service Vehicles (matatus).

5. While the Petitioners were exercising their constitutional right to peacefully demonstrate and picket the 2^nd Respondent’s Police Officers arrived at the University premises heavily armed with teargas, batons, sticks, and heavy police armory. The police officers immediately took to mercilessly beating, hitting and thrashing the Petitioners with batons and sticks and whichever other weapon they could find. The Petitioners sustained bodily injuries, harm, emotional and psychological pain, suffering and torture.

6. It is urged that the Police Officers in an undignified manner ferried the Petitioners to Hardy Police Station at around 11am or thereabouts and then an hour later the Petitioners were transported to Lang’ata Police Station without being informed of the charges, that were being preferred against them. 

7. That therefore the Petitioners urge that the 2^nd Respondent’s police officers in connivance with the office of the 1^st Respondent subsequently fabricated fictitious charges against the Petitioners charging the Petitioners with the offences in Count I of, “Taking part in a riot contrary to Section 80 as read with Section 36 of the Penal Code’ and alternative Count of ‘Creating disturbance in a manner likely to cause a breach of peace contrary to Section 95 (1) (b) of the Penal Code’ leading to Kibera Chief Magistrates Criminal Case No. 1178 of 2019. 

8. The Petitioners in the Petition dated 16^th September 2019 maintain that the Respondents in their respective capacities violated the Constitution and their fundamental rights and freedoms.

THE 1^ST RESPONDENT’S RESPONSE

9. The 1^st Respondent is opposed to the Petition and in doing so filed grounds of opposition setting out 6 grounds of opposition dated 1^st September 2020.

THE 2^ND, 3^RD, 4^TH AND 5^TH RESPONDENTS’ RESPONSE

10. The 2^nd, 3^rd, 4^th and 5^th Respondents are also opposed to the Petitioners Petition and have filed grounds of opposition setting out 13 grounds of opposition dated 28^th September 2020.

ANALYSIS AND DETERMINATION

11. Upon consideration of the Petition, Responses and submission as well as authorities relied upon, I find that the following issues arise for determination:-

a) Whether the Petitioners’ fundamental rights under the Constitution have been violated and whether the arrest and consequential charges violates Article 49 and 157 (1) of the Constitution.

b) What reliefs (if any) are the Petitioners entitled to.

A. WHETHER THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION HAVE BEEN VIOLATED AND WHETHER THE ARREST AND CONSEQUENTIAL CHIARGES VIOLATES ARTICLE 49 AND 157 (1) OF THE CONSTITUTION.

12. The Petitioners contend that the Respondents violated their fundamental rights under Article 28, 29, 37 and 33 of the Constitution. It is urged that the Multi-Media University Student Leaders and other University Students including the Petitioners herein, led the demonstration whilst in exercise of their Constitutional Rights and Freedoms and attempted to also address the press and air their distresses concerning one of their colleagues who had been hit by a moving vehicle at Sinai Hospital, Ongata Rongai, as this was not the first incident wherein a student had been knocked down by the said speeding matatus.

13. It is Petitioners case that the demonstration was going on as planed in a peaceful and organized manner only for the officer of the 2^nd Respondent, to arrive at the University premises heavily armed with teargas, batons, sticks, and heavy police armory; whose presence was meant to provide security to the Petitioners and other students, started off by stopping and/or violently shutting down the said demonstration. 

14. It is contended that the 1^st and 2^nd Petitioners, were engaging the OCS Hardy Police Station on the best way to resolve the increased accidents along Magadi Road and hardly had they started the said deliberations than the OCPD Lang’ata appeared with armed police officers and started beating whomever they found on their path.   It is Petitioners case that the demonstration was peaceful until the 2^nd Respondent’s police officers without due regard to the Petitioners’ rights violently disrupted the peaceful assembly, properly organized by Multimedia University Students. 

15. The Petitioners aver that due to 2^nd Respondent’s Police Officers illegal and unconstitutional conduct, violated Article 37 of the Constitution of Kenya 2010 which provides that: “Every person has the right, peaceably and unarmed, to assemble, to demonstrate, to picket, and to present Petitions to public authorities.” It is further urged the 2^nd Respondent’s Police Officers cabinet further violated Article 20(1) of the Universal Declaration of Human Rights (UDHR) which provides that: “Everyone has the right to freedom of peaceful assembly and association.”

16. The Petitioners urge that they were keeping peace and were unarmed. That the violent disruption occasioned by the 2^nd Respondent’s Police Officers does not satisfy the test for limiting the right enshrined in Article 37 of the Constitution. Reliance is in support of this proposition is placed in a decision by Mativo J, in Wilson Olal & 5 others vs. Attorney General & 2 others [2017] eKLR where he rendered that “any limitation must be subject to a three-part test:- (a) a limitation will only be acceptable when ‘prescribed by law; (b) when it is necessary and proportionate; and (c) when the limitation pursues a legitimate aim’ namely:- the interests of national security or public safety; the prevention of disorder or crime; the protection of health or morals; or the protection of the rights and freedoms of others. This test must be observed by police and authorities at all times.” It is further submitted that the 2^nd Respondent’s Police Officers conduct was unwarranted and that it was illegal, unnecessary, illegally disappropriate and did not pursue a legitimate aim other than violating the Petitioners’ right to peaceful demonstration and picket.

17. The Petitioners further urge the 2^nd Respondent’s Police Officers’ disruptive and illegal actions in a peaceful demonstration is unconstitutional and generally illegal. Further, it is inconsistent with Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which Kenya acceded to on 1^st May 1972, and which protects right to peaceful assembly and stipulates that any restriction on this right must be in conformity with the law and necessary in a democratic society.

18. The Petitioners further contend in the alternative that eternally, that even if they were armed or disruptive, which they were not, the 2^nd Respondent’s Officers’ actions were appallingly extreme. Less stringent restrictions would have catered for the concerns of the police such as providing security to ensure that the demonstration was peaceful. The imposition of lesser restrictions was an option where they perceived there was breach of peace.

19. The Petitioner places reliance in the case of Wilson Olal & 5 others vs. Attorney General & 2 others (supra), where Hon. Justice Mativo stated that :-

“…The level of justification required to warrant a limitation upon a right depends on the extent of the limitation. The more invasive the infringement, the more powerful the justification must be.” The 2^nd Respondent’s police officers’ action is unjustified and unjustifiable despite its extreme invasive infringement of the Petitioner’s right.

20. The Petitioners further urge that in addition to the aforesaid, that the glaring and blatant violations of Article 37, the Petitioners’ right to assembly, demonstration, picketing and Petition is functionally interrelated with freedom of expression as enshrined in Article 33 of the Constitution. Article 33 of the Constitution provides that: (1) “Every person has the right to freedom of expression…  (2) Which does not extend to propaganda for war, incitement to violence; hate speech and advocacy of hatred…” The Petitioners further aver that the misconceived decision by the 2^nd Respondent’s police officers to violently disrupt a peaceful demonstration was an infringement of the Petitioners’ constitutional right to express themselves. It is contended that there was no justification for their actions as there is nothing to show that the demonstration would have resulted or resulted in the exceptions under Article 33(2) of the Constitution.

21. The 1^st Respondent is opposed to grant of the Petition and urge that the prayers sought by the Petitioners are unconstitutional as they seek to prevent the Respondents from exercising their mandate as provided in Law.  It is contended if prayers sought are granted they would result to a greater injustice in the criminal justice system and public interest.

22. The 1^st Respondent further urge that it is an established principle that where a party alleges a breach of fundamental rights and freedoms, he or she must state and identify the rights with precision and how the same have been or will be infringed in respect to him. Reliance in support thereto is placed in the case of Anarita Karimi Njeru vs. Republic (1976 – 1980) KLR 1272 where the principle states that:-

a) Constitutional violations must be pleaded with a reasonable degree of precision.

b) The Articles of the constitution which entitles rights to the Petitioner must be precisely enumerated and how one is entitled to the same.

c) The violations must be particularized in precise manner.

d) The manner in which the alleged violations were committed and to what extent.

23. The 2^nd, 3^rd, 4^th and 5^th Respondents on their part contend that no
Right of the Petitioners were violated by the Respondents. It is avered whatever was done, particularly by the 2^nd Respondent was legal and well within their constitutional and statutory powers.

24. It is urged by the Respondents that looking at the entire Petition, there is no single provision of the Constitution that has been singled out in the Petition to demonstrate how it was violated and the manner in which the violation occasioned harm to the Petitioners. As stated in the Anarita Karimi Njeru case (supra) there is a Constitutional test for all constitutional Petitions, seeking to enforce constitutional rights.

25. The Respondents contend that the Petitioners in the Petition urge that their prosecution at Kibera Law Court in Criminal Case No. 1178 of 2019, is contrary to the Bill  of Rights, Chapter IV of the Constitution of Kenya and is a violation of their constitutional rights. The Respondents urge contrary to the aforesaid allegations, that there is no evidence of harassment, no evidence of intimidation, no evidence of unfair hearing and no evidence of judicial manipulation has been demonstrated by the Petitioners in their Petition.

26. The Petitioners contend the Petition has violated clear provision for pleadings to be precise reliance on the need of the pleadings to be precise in Constitutional Petition is placed in the case of Mumo Matemu vs. Trusted Society of Human Rights Alliance & 5 others [2013] eKLR, where the High Court held that:-

“It is our finding that the Petition before the High Court was not pleaded with precision as required in constitutional Petitions. Having reviewed the Petition and supporting affidavit, we have concluded that they did not provide adequate particulars of the claims relating to the alleged violations of the Constitution of Kenya and the Ethics and Anti-corruption Commission Act, 2011. Accordingly the Petition did not meet the standard enunciated in the Anaritta Karimi Njeru case.”

27. I have carefully perused the instant Petition, and I note the same was not pleaded with precision as required in a Constitutional Petition. I have also read the supportive affidavit and no doubt the same has not provided adequate particulars of claims relating to the alleged violation of the Constitution. The Petitioners have failed in the instant Petition, to demonstrate the Constitutional violations with precision and the manner in which the said violations were occasioned and the harm suffered by the Petitioners. 

28. Further in the Petition the Petitioners allege their rights under Article 49 and 157 of the Constitution were violated as at the time of their arrest. They claim that they were denied the right to legal representation and that their relatives were turned away. The said rights are not absolute and can be limited by the Constitution where it can be justified that the limitation is reasonable.

29. Under Article 24 of the Constitution it is provided that a right or fundamental freedom in the Bill of Rights shall not be limited except by law, and then only to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors.

30. It is noted that according to Section 54(2) of the National Police Service Act,  that:-

“A person who disobeys any lawful order given by a police officer under subsection (1) commits an offence, and may be arrested without a warrant unless he gives his name and address and satisfies the police officer that he shall duly answer any summons or other proceedings which may be taken against him.”

31. In view of the above it is clear that the 2^nd Respondent have powers to arrest any person who disobeys any lawful order and that act cannot be termed as unlawful or a violation of the said person’s constitutional rights. In addition it is not in dispute that police officers can detain any person who commits an offence or is about to commit an offence. The Petitioners were temporally detained as it was necessary that they be detained as such so that the police could do preliminaries in terms of capturing their identities in the occurrence book and other investigations before they could be released. They enjoyed all their rights under the constitution other than the temporal restrictions. That cannot be said to be a violation of their constitutional rights.

32. To buttress the above-mentioned proposition reliance is placed in the case of Sylvanus Okiay Ongoro vs. Director of Criminal Investigations & 4 others [2020] eKLR where the High Court held that:-

“In the instant case, having established that there was reasonable and probable cause to warrant, the arrest and prosecution of the Petitioner it is my considered view that the act of prosecuting the Petition was warranted. Furthermore, no evidence was laid before this Court to show that the Directors of Public Prosecutions was party to the investigation of the Petitioner’s alleged criminal conduct, or that he had no reason to exercise his discretion under Article 157(4) of the Constitution.”

33. The Petitioners were part of the persons found taking part in a demonstration and there was a reasonable and justifiable grounds for the police officers to arrest any person on account that the said person has committed an offence, the same therefore cannot be said to be a violation of any of the person’s constitutional rights.

34. The National Police Service draws its authority to investigate from Article 245 of the Constitution and Section 35 of the National Police Service Act. It is clear in exercise of its power of investigation, the Police are functionally independent and can only take direction to investigate from the DPP and no other authority. In the case of the DPP’s directive, the Constitution requires the directives to be in writing for the Police to give effect. In this case, the Petitioners have not presented any written directive to the Police by any other authority to justify their claim that the investigations have been commenced for a collateral purpose. In the absence of that evidence, the Court can only presume that Respondents are purely acting on the discharge of their lawful authority.

35. The law clearly allows the Police and any other investigative agency to investigate Petitioners if there’s probable cause to do so, the status of the Petitioners notwithstanding. In the case of Dr. Alfred N. Mutua Vs. the Ethics and Anti-Corruption Commission & Others, Misc. Application No. 31 of 2016, the learned Judge ruled as follows:

“Is threat of arrest or arrest with reasons given a violation or threatened violation of fundamental rights and freedom? We think not. What the law seeks to prevent is arbitrary arrest without probable cause. An objective justification must be shown to validate arrest of any individual. The Kenya Constitution recognizes that if a criminal offence is committed, investigation, arrest and prosecution might ensue…”

36. In the instant Petition the Police received a complaint and were duly bound to investigate. To buttress this the Respondent’s placed reliance in the case of Republic vs. The Commissioner of Police & the Director of Public Prosecution Ex parte Michael Monari & Another Misc. Application No. 68 of 2011, Nairobi, where in determining whether the Respondent’s had abused their statutory and constitutional powers, the Learned Judge stated that:-

“…the Police have a duty to investigate on any complaint once a complaint is made. Indeed the police would be failing in their constitutional mandate to detect and prevent crime.  The police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial court. The predominant reason for the institution of the criminal case cannot therefore be said not to have been the vindication of the criminal justice. As long as the prosecution and those charged with the responsibility of making the decision to charge act in a reasonable manner, the High Court would be reluctant to intervene. It is not the duty of the Court to go into the merits and demerits of any intended charges to be preferred against any party…. It would be improper for this court to try and/or attempt to determine the intended criminal case which is not before it. There is no evidence to show that the respondents exceeded jurisdiction, breached rules of natural justice or considered extraneous matters or were actuated by malice in undertaking the investigations against the applicants. The purpose of criminal proceedings is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and on that account is deserving punishment.”

37. In order for Petitioners to succeed on claim based on abuse of statutory and constitutional powers, by police, the Petitioners should establish that the police acted ultra vires their power and unless that is established the Court need not inhibit the Police from investigation. Support of the proposition is clearly found in the case of Cascade Company Limited vs. Kenya Association of Music Production (KAMP) & Others, Petition No. 7 of 2014 High Court, Murang’a where the Court  stated as follows:-

“…In my view, as long as the enabling legislation is constitutional, the Respondent’s actions ensuing therefrom are lawful unless, of course, it can be demonstrated that the Respondents have in their actions, breached those very provisions or have acted ultra vires to the act. Simply put the Respondents should not be inhibited unnecessarily from exercising their constitutional and statutory mandates.”

38. On prosecutorial powers Article 157 of the Constitution vests State powers of prosecution upon the Office of the Director of Public Prosecutions. The power is reinstated in pari materia under Section 5 of the Office of Director of Public Prosecutions Act. In the exercise of his power, the DPP is under no direction nor control of any person, body or authority as provided for under Article 157(10) of the Constitution.

39. The primary test in making of Prosecutorial decision on the part of the DPP is whether or not the material gathered meets the evidential and public interest threshold. The Nation Prosecution Policy clearly enunciates this position. In the case of Mohamed Ali Swaleh vs. The Director of Public Prosecution& Another – High Court Mombasa Petition No. 2 of 2017 the Court held:-

“the decision  whether or not to institute criminal proceedings is made based on the evidence collected. Once the investigations establish reasonable suspicion that a person committed a crime he ought to be charged in a Court of law.”

40. Further the position was set out on the case of the Republic vs. Commissioner of Police & Another (2012) eKLR where it was held that:-

“…the Police only need to establish reasonable suspicion before preferring charges. The rest is left to the trial Court.”

41. I am alive of numerous judicial decisions, where Courts have held that it is not the Court’s duty to decide who to be charged and with what offence. I find that if the Court’s were to do so, they would clearly be intermeddling in matters that are purely within the province of the DPP, thus rendering the DPP, constitutionally docile entity and act in contravention of the Constitution, thus the Courts should not indulge in DPP’s, mandate at all.

42. Having considered the evidence on record, rival submissions and authorities in support of rival positions, I find that the Petitioners have failed to demonstrate that their Constitutional rights were violated and in what manner and the harm suffered by the Petitioners. In additional the Respondents have demonstrated that their actions were within their Constitutional mandate and statutory provisions. The rights in question I find that are not absolute and can be limited by the operation of law.

B. WHAT RELIEFS (IF ANY) ARE THE PETITIONERS ENTITLED TO.

43. The Petitioners urge that as a result of the aforesaid violations of the fundamental freedom as protected, a declaration for general damages should be issued as prayed. The Petitioners prayer is based on the provision of Article 23(3)(e) of the Constitution which provides for an order of compensation for violations of fundamental rights and freedoms such as petitioned and submitted herein. 

44. Reliance is placed in the case of Wilson Olal & 5 others Vs. Attorney General & 2 others (supra) where Mativo J, rendered himself thus:-

“It is thus now well settled that award of compensation against the State is an appropriate and effective remedy for redress of an established infringement of a fundamental right under the Constitution. The quantum of compensation will, however, depend upon the facts and circumstances of each case. I accept in principle that constitutional damage as a relief separate and distinct form remedies available under private law is competent because a violation of a constitutional right must of necessity find a remedy in one form or another, including a remedy in the form of compensation in monetary terms.”

45. In the instant Petition, I have come to conclusion that the Petitioners have failed to establish infringement of their fundamental rights and freedom and that the Respondents acted within their Constitutional mandate and in accordance with statutory provisions.

46. The Petitioners in the instant Petition prayed for general damages in the sum of Kshs.10 million for the alleged violation of their rights and fundamental freedom under various provisions of the Constitution. I agree with Respondents submission that the said general damages are not anchored on anything and the same is baseless claim which should be rejected.

47. The Respondents in support of their position that the Petitioners’ claim is anchored on nothing places reliance in the case of Reuben Njuguna Gachukia & another vs. Inspector General of the National Police Service & 4 others [2019] eKLR, where the High Court held that:-

“Having regard to the above judicial experience and philosophy, it is clear that the award of damages for constitutional violations of an individual’s  right by state or the government are reliefs under public law remedies within the discretion of a trial Court but that such discretion is limited by what is “appropriate and just” according to the facts and circumstances of a particular case in view of the fact that the primary purpose of a constitutional remedy is not compensatory or punitive but is to vindicate the rights violated and to prevent or deter any future infringement.

48. The upshot is that the Petition is without merit and is dismissed. Each party to bear its own costs.

Dated, Signed and Delivered at Nairobi on this 10^th day of March, 2022.

………………………

J. A. MAKAU

JUDGE OF THE HIGH COURT OF KENYA